Going the extra mile

Recently, the coalition government announced it wanted to continue its various reforms of legal aid and given the ‘austerity agenda’ it is following, this doesn’t mean expanding or consolidating the once proud fifth pillar of the welfare state. It means cutting it even further than the previous round of cuts under the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) that came into force in April this year. The government calls this latest round of cuts “Transforming Legal Aid”

It’s worth saying that the government has already ‘transformed’ legal aid. LASPO cut some £350million from the yearly legal aid budget, meaning that from this April some 650,000 people each year will no longer get any – or severely curtailed – professional help and assistance in areas of law such as debt, employment, welfare benefits, housing, family, special educational needs, clinical negligence, actions against the police, and the list goes on. If you want to know a bit more about this then this short campaigning magazine does a great job of explaining and summarising

Under the current set of proposals the government wants to focus on criminal legal aid – although they also include even more cuts to the civil legal aid budget on top of the huge slice already cut out of it by LASPO. The new proposals are significant and far-reaching and, unless you work in the legal profession or are one of the civil servants who comes up with these things, some might at first seem a bit abstract eg ‘Crown Court (non-VHCC) cases with more than 500 PPE: maintain current graduated fee scheme but rates set per provider per procurement area based on the provider’s bid discount against the current rates under the Litigators’ Graduated Fee Scheme.’

Anyway, some are lot more straightforward and I want to focus on just one of them here: removing the right for you to choose your own lawyer if you are arrested, and onwards should you need defending in criminal proceedings

If I were in the unfortunate position of being arrested I would like to think I would have some choice in who was going to advise me and defend my liberty. This isn’t to suggest that any lawyer who might be allocated to me might be rubbish (though they might be, at least to my mind). It’s about my right as a citizen to choose

In what just might be the most significant event in my life I would like at least to have the choice to select my own lawyer should I choose to do so – just as I am able to do now. It might be someone I had dealt with in the past and who I trusted to give it to me straight. It might be someone who had been recommended by a family member or a friend. It might be someone who I knew had lots of experience of the particular offence I had been arrested for. Whatever the reason, I think that any reasonable and fair-minded person would think the same. Having that choice is about society and government doing the right thing. It’s about justice

But having that choice, and not having someone you don’t know foisted onto you, can help in other ways too. It can avoid significantly greater costs to the taxpayer for example, through unnecessary (or unnecessarily protracted) court proceedings. It can also avoid or at least minimise the human grief and heartache for those immediately involved, including for the victims of crime

I came across what I thought was a good illustration of this earlier today when reading a real-life account of the relationship between a duty solicitor and one of his clients. With kind permission I reproduce this account in full below (in italics). You can read the original piece (and more!) on the solicitor’s own blog here

Brian is 6’4″ tall, weighs 22 stone, shaves his head and has tattoos covering about two-thirds of his body. Brian suffers from a number of physical difficulties including epilepsy and has been categorised as having a borderline personality disorder and takes a cocktail of medication each day.

He speaks slowly and has a broad West Country accent. First impressions on meeting Brian are rarely positive. Physically he is intimidating and his speech and mannerisms often give the impression that he is slow to comprehend things.

As a result the contact he has had with authority figures whether that be police, doctors, social services or courts rarely go smoothly. People treat him as being stupid, and he becomes frustrated, voices are raised and one thing leads to another, usually badly for Brian. Brian is certainly not stupid, just unable to communicate very well.

Three years ago Brian met Sheila. Sheila was the love of his life, his first girlfriend. For ten months Brian spent all his time with and all his money on Sheila; flowers, chocolates, fancy meals, clothes, jewellery and a myriad of other gifts. All was well with his life.

At the end of ten months Sheila left Brian and there was no reason given, no real explanation, she just stopped answering his calls, texts were not responded to and her Mum told him she was never in. Brian became depressed, his medication was upped and over time he found a level to build from.

Then two months later Sheila contacted him again.

A text, would he meet her, she wanted to talk.

Delighted, he met her in their café and she told him she was pregnant. Not for a minute did he question whether he was the father. In his head he straight away made plans about what the baby would need, where they could go and what he would do with her. Sheila made it clear that she didn’t want him to have any involvement at all, he could provide for the baby and that was that. Nothing Brian could say would change her mind.

Resigned to the fact he may never see his child he nevertheless started buying clothes, toys and other essentials from his Disability Living Allowance. He opened an account and put £10 a week into it, “For when she was 18 and needed a car”.

Six months later, Hazel was born.

Brian was not present at the birth and was only told he had a daughter two weeks after the actual birth by way of a text message. Brian immediately went to see Sheila but she wouldn’t see him. He didn’t see Hazel but was sent a blurry picture to his mobile phone.

At that point someone told Brian that he was entitled to see his daughter, he had rights. He contacted the firm I worked for and the process of him seeking contact was started. Time was spent with him, and a relationship was built with him. At first things were not easy, he distrusted authority figures, he did not want to communicate with us, and wasn’t happy to speak about himself and his life. But, things got better and as he began to trust us he provided information that we needed to help him and to built a case. There then started eight months of assessments; court, doctors and social workers and various distressing court hearings where Brian’s life was dissected.

You see, not only did Brian have various medical issues he had a caution when he was 17, for sexual assault. He had kissed a girl, a fifteen year old, who he thought was his best friend. She told her Mum, she told the police and he was arrested. The circumstances were not in dispute but it meant Brian was a potential risk to a child, even his own. Finally the court ordered that Brian be allowed three two hour contact sessions a week, supervised and in a child friendly environment.

For three months all went well. Brian had his contact and he thrived from it. He had a new tattoo on his arm proudly proclaiming his daughters name and date of birth. He was in his own words, “as happy as I had ever been”.

Then, through no fault of his own his benefits money changed and he had less to live on. Some weeks he could not afford to pay the maintenance he had been paying to Sheila. Suddenly Hazel was ill, she was away, she was asleep and so he was no longer having his contact. She wasn’t, they were all just excuses made up by Sheila. For a while Brian accepted these reasons and did not make a fuss. As the days went by his frustration increased, calls were made to Sheila, texts sent and visits made. Still no contact.

Battling with his emotions; the frequency of the calls increased, texts filled Sheila’s inbox, he knocked on her door more and more often. Frustration moved to annoyance and then anger. Words were said in desperation and sent in texts for all to see. Brian was arrested for harassment and I turned out at 11pm to represent him. He had said he didn’t want a solicitor at first but a sensible custody sergeant had persuaded him. He asked for my firm as he knew us and trusted us. I spent forty minutes with him, I already knew who Brian was and I understood where the root cause of the problem came from.

After advice and an interview, representations were made to the Sgt and a caution given. Brian was also told how he could enforce his court order for contact, and an appointment made for the following day.

I went on to the next client and forgot about Brian. I saw him a few weeks later pushing a pram, fussing about a blanket over his baby daughter. We stopped and chatted for a few minutes, made the obligatory comments about a beautiful baby, wished him well and went on with my day.

A few days ago I was called to the police station for a “lump of a man” who had been difficult from the moment he came in and was still being difficult in his cell. He had been arrested for common assault.

I went straight up to the station. I was told that the client was Brian and was told that four weeks ago he had punched his ex partner over a contact visit, they were both in the middle of a busy shop, people and children had been scared. He was asked to leave and he had walked off.

I was told that he had admitted it when he was arrested and that the interview was a formality. There was no injury but having in mind his previous caution on the same victim, his background and the fact he had been difficult all the way through his detention he was going to be charged.

I was able to find out by speaking to the officer, although he was reluctant to tell me, that the statement had only been made three days ago. I asked to speak to Brian, and got a drink for him, hot chocolate with five sugars because I knew that’s what he liked.

I went into the room to speak to Brian. He was in tears, a monster of a man sobbing into his fists in the corner of the interview room. As soon as I walked into the room he became calmer, he started to listen to what was being said to him. He knew me and he trusted me.

It seemed that, on the day, he and Sheila had made the usual arrangements for a contact visit, but one of them had made a mistake and having waited twenty minutes Sheila had gone off shopping. Brian had called her and when she said she was in the supermarket shopping, he had gone down to speak to her and hopefully persuade Sheila to allow the contact visit.

He had gone to the shop where he had found Sheila with her head in a freezer choosing a pizza. When he called her name he said she didn’t answer him but thought she may not have heard him, it was after all a busy shop and her head was in the freezer.

“So what did you do?”

“I tapped her hard on the shoulder to get her attention so i could speak to her. She shouted at me and the Manager asked me to leave”

He denied that he had on he had punched her, and maintained that he was not angry with her.

He went on to say that he hadn’t seen Hazel since, and he had not paid Sheila maintenance for three weeks because he had not had contact. Three days ago she said she was going to report the assault.

He was scared that he would lose all his contact with Hazel because of more lies. He said that Sheila did not need him now as she had a new boyfriend. He said he didn’t want to talk to the police officers as they wouldn’t let him speak and thought he was stupid.

I explained that in law he had committed an assault by touching her without her permission, even if he had not punched her. I told him he needed to explain his history with Sheila to the officers and that the officers had not let him speak before because they wanted to protect him and themselves as the comments needed to be on tape.

Brian wasn’t certain whether he could say all he wanted to say properly, he didn’t think he could talk to the officers and let them know all they needed to know. He was scared that he would make his situation worse and by admitting an assault Sheila would go back to the court and he would lose his contact.

I drafted a prepared statement, Brian signed it and I read it out for him at the start of the interview. I made it clear that Brian was happy to answer any clarification questions. With patience and cajoling from me and the AA Brian got through the interview.

The officer told the Sgt that he had made a full admission to the offence, that he had been frustrated by the contact being messed up and he had hit Sheila on the shoulder. She was factually correct, that’s what he had said in his statement, and in the questions he had then answered. The meaning of what he had said was different, a fact I explained to the Sgt and the officer. After much discussion and thought, it was agreed that on the balance of the evidence, the lack of corroborative witnesses and taking Brian himself into account that there should be no further action and Brian was released.

He still has to resolve the issue of contact, without the help of a legal aid lawyer now but at least he does not have the additional burden of a charge to deal with.

This is just one example of why the right to choose the solicitor of your choice is so very important and one that we should all fight to preserve. It is not unique and I and my colleagues could give you so very, very many stories of a similar type. My knowledge of “my clients”, the relationship we build with them and the trust that we develop helps ensure justice for them and often their victims. This is something that is hugely important to me. It really isn’t about the money.

I’m not saying that the same results would not have happened if Brian had been allocated different unknown solicitors each time he had been arrested and that Brian would have been facing a charge in court. I am saying that in his case there would be a very real risk that he would have simply not co-operated due to his difficulties, and an injustice may have happened and what price do we put on ensuring an injustice does not happen. In this case I was able to use my knowledge of my client, his circumstances and my working relationship with the police to prevent a possible injustice and more importantly save money for the public purse.

He will be able to continue to see Hazel and that means he remains stable and happy and does not push him off the rails where who knows what it might cost to put right. The cost of a court case has been avoided.

Your right to choose a solicitor and a barrister of your choice of legal advice is important. Make sure that you can exercise it in the future and let your MP know how you feel. This is a really important issue, nobody wants to think they will be arrested or face a charge, but sometimes the unthinkable happens. When it does then make sure you can choose who you or your loved ones are helped by.